Habeas Hints: SCOTUS Review 2016–17
by Attys. Kent Russell & Tara Hoveland
This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorney (“in pro per”). The focus of the column is on “AEDPA,” the federal habeas corpus law that now governs habeas corpus practice in courts throughout the United States.
(Acknowledging and Avoiding the Kiss
Federal courts generally refuse to hear claims that were defaulted in state court because of an “independent and adequate state procedural rule” that the petitioner failed to follow; and which, in turn, caused his or her state habeas corpus petition to be denied on procedural grounds. Avoiding this “kiss of death” in the first place is Job One. If that fails, however, trying to save oneself from the default is discussed here.
A state court rule is “adequate” if it is firmly established and regularly followed by the state courts as a basis for denying state habeas corpus claims. For example, almost all the states do not permit a petitioner to raise a claim on habeas corpus that could have been raised on direct appeal. This is a principle that, in California, is known as the “Dixon Rule.”
In Johnson v. Lee, 136 S.Ct. 1802 (2016), the Supreme Court of the United States (“SCOTUS”) held that the Dixon Rule is “adequate” as a bar to federal habeas corpus, even though it is not followed in every case as a basis for denying habeas corpus in the California Supreme Court. Hence, and from now on, if a California state habeas corpus petition is denied because the Dixon Rule was violated, that will automatically constitute a “procedural default” that will prevent the petition from being heard on the merits on federal habeas corpus.
Johnson is bad news for habeas corpus petitioners because where a state court habeas corpus claim is denied on the basis of a procedural rule that is “regularly” applied, that denial will bar consideration of the petition in federal court. That is true even if it can be shown, as the petitioner did in Johnson, that the rule in question was not always followed in the state courts, and sometimes was even ignored.
On the other hand, there is some light in the Johnson tunnel because the Court emphasized that it was applying the Dixon Rule to bar consideration in federal court largely because of the “exceptions” that were built into the rule by the California courts. Although Johnson doesn’t specifically identify what those “exceptions” are, it cites to a California Supreme Court decision which talks about “special circumstances” that can “excuse” a failure to bring the claim on direct appeal. And one of these exceptions is where the habeas petition contains something of “substance” that was not already in the record on direct appeal. That suggests ineffective assistance of counsel (“IAC”), a common habeas corpus claim, almost never developed on the appellate record, because such a claim is based, by definition, on evidence that the trial attorney did not introduce at trial, and hence was not a part of the record on appeal.
Thus, where one is bringing a claim on habeas corpus that is based largely on the existing record, be wary of a Dixon Rule default. Try to avoid it by supporting the claim with evidence that, because of IAC, trial counsel failed to introduce at trial.
(Trying to Get through the Eye of the Needle)
The previous section emphasizes the need to try to avoid procedural defaults in the first place by satisfying an exception to the default under state law. If, however, you do wind up with a procedural default ruling in the state’s highest court, there is one escape hatch you can try to get through – namely, the principle that, notwithstanding a state procedural default, the federal courts can still reach the merits to “avoid a fundamental miscarriage of justice.”
Avoiding a miscarriage of justice requires “a showing by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the defendant guilty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333 (1992). Such a showing, perhaps the hardest to make in the entire American legal system, is commonly known as the “actual innocence” exception to procedural default.
Actual innocence claims must be based on new evidence that was not presented at trial, and that can satisfy the very demanding standard set forth above. When deciding the ultimate question of innocence, the habeas court must consider all the evidence – old, new, incriminating, and exculpatory – and then decide whether it is more probable than not that no reasonable juror, considering all the evidence, would have voted for guilty.
Actual innocence can be used as a gateway to the federal court for a claim that would otherwise be barred by some procedural default. For example, a claim that would otherwise be barred by the AEDPA statute of limitations will be considered on the merits if actual innocence is shown and the prisoner has not “unreasonably delayed” in bringing the claim to federal court.
But to get relief, there’s more: In addition to meeting the very demanding test for actual innocence, the petitioner must also demonstrate a separate constitutional violation – apart from his or her innocence – which “probably” caused the guilty verdict. This latter principle was applied and explained in the recent case of Jenkins v. Hutton, 137 S.Ct. 1769 (2017). In Jenkins, the petitioner filed a federal habeas corpus petition alleging a claim that he could have brought on direct appeal – a miscue that, as explained in the previous section, constituted a procedural default that would normally bar the claim from being heard in federal court. Specifically, the defaulted claim was that the trial court had failed to instruct the jury that, at the penalty phase, Hutton could only be sentenced to death on the basis of aggravating circumstances the jury had found to be true during the guilt phase of the trial. To get around the default, Hutton had argued that he was actually innocent of the death penalty and that this error in the instruction was the separate constitutional violation he needed to show to get relief.
The Sixth Circuit accepted these arguments and reached the merits of Hutton’s claim, but SCOTUS reversed. The Court held that the lower court had erred in reaching the merits because, in considering the instructional error claim, that court had considered whether the jury might have relied on aggravating circumstances not found in the guilt phase, and not whether a properly instructed jury could have recommended death. In other words, the lower court had erred by reaching the merits of a defaulted claim without requiring the petitioner to show, in addition to actual innocence, that a separate constitutional error “probably” rather than just “possibly” contributed to the guilty verdict.
Default: Cause and Prejudice
(Just be“cause” your trial counsel was
A petitioner who has procedurally defaulted, but who cannot thread the needle of “actual innocence,” can still escape the consequence of the default by showing “cause and prejudice.” To do so, s/he must demonstrate “cause” for the default and actual “prejudice” as a result of the constitutional violation. To show “cause,” a petitioner must show that an objective factor impeded raising the claim, such as interference by prison officials, ineffective assistance of trial or appellate counsel, or that the factual or legal basis for the claim was undiscoverable. This section deals with using IAC of post-conviction counsel as “cause” to excuse a procedurally-defaulted IAC claim.
In Coleman v. Thompson, 501 U.S. 722 (1991), post-conviction counsel missed a filing deadline in state court. As a result, all the claims from that state habeas petition were barred from federal review as procedurally defaulted based on the state’s “independent and adequate” rule regarding the filing deadline. Coleman argued that his post-conviction attorney’s error in missing the deadline constituted IAC and thus was sufficient “cause” for the default. SCOTUS disagreed, holding that attorney error can be “cause” only if it constitutes IAC violative of the 6th Amendment. The Court reasoned that there could be no 6th Amendment violation, because there is no constitutional right to an attorney in state post-conviction proceedings. Thus, Coleman’s “cause” showing required proof of some external impediment preventing him or counsel from properly constructing or raising the claim. The Court held that attorney ignorance or inadvertence is not “cause” because the attorney is the petitioner’s agent when acting or failing to act in furtherance of the litigation, and the petitioner must bear the risk of attorney error.
Flash forward to 2012. In Martinez v. Ryan, 566 U.S. 1, SCOTUS modified Coleman by allowing for a very narrow exception to the general rule that error by post-conviction counsel does not constitute “cause.” The Court held that if a petitioner failed to properly raise a trial counsel IAC claim in a state where such a claim was required to be brought in initial post-conviction relief proceedings rather than on direct appeal, s/he could argue that post-conviction counsel’s IAC constituted “cause” to excuse the procedurally defaulted trial counsel IAC claim. In Trevino v. Thaler, 133 S.Ct. 1191 (2013), SCOTUS expanded that exception to include states where, even if an IAC claim was not required to be brought in post-conviction relief proceedings, the state’s procedural framework was such that an IAC claim could not meaningfully be raised on direct appeal.
Narrow means narrow. In Davila v. Davis, 137 S.Ct. 2058 (2017), SCOTUS refused to extend the Martinez/Trevino holdings to ineffective assistance of appellate counsel claims that were procedurally defaulted by post-conviction counsel’s ineffectiveness. Thus, just because a trial counsel IAC claim can be revived in federal court after having been procedurally defaulted below due to post-conviction counsel’s error, an appellate IAC claim cannot.
(Strickland may not be so strict after all…)
You are probably aware of the Strickland v. Washington’s, 466 U.S. 668 (1984), two-part test to prove IAC: You must show (1) that reasonably competent counsel would not have acted or not acted the way your counsel did and (2) that there is a reasonable probability that but for your counsel’s unprofessional error(s), the results of the proceeding would have been different, e.g., you would not have been convicted. SCOTUS in Buck v. Davis, 137 S.Ct. 759 (2017), recently reaffirmed the definition of prejudice by stating what habeas attorneys have been arguing for decades: If it is reasonably probable that “at least one juror would have harbored a reasonable doubt,” then you have proven prejudice sufficient for your IAC claim. It is also important to remember that the “reasonable probability” standard is even less demanding than the preponderance of the evidence standard. Strickland made clear that the error merely needs to “undermine confidence in the outcome.” In other words, if you can manage to show deficient performance, “things that make you go hmmm…” may get you past the Strickland test for prejudice.
Certificates of Appealability
(Why did the chicken cross the road?
To get to the Circuit Court of Appeals,
Alas, your habeas petition was denied in the U.S. District Court. Now what? You need a Certificate of Appealability (“COA”), and you need it fast! Usually, the district court will tell you in its denial order whether it is granting or denying a COA on one or more of your claims. If the court grants it, you’re good to go! File your Notice of Appeal within the 30-day time limit, and you can proceed to the Circuit Court of Appeals to appeal your case. If, however, the district court denies your COA, you must file a request for a COA in the circuit court within 35 days of the district court judgment. If you choose to file a request for a COA in the circuit court or in the district court, all you need to show is that your claim is “reasonably debatable” by “jurists of reason.” Wait, what? Think about it this way: If a reasonable legal argument can be made that the district court was wrong in denying your claim, or if your claim is adequately presented to deserve encouragement to proceed further, you win the chance to fight another day – in the Circuit Court of Appeals!
SCOTUS in Buck v. Davis, 137 S.Ct. 759 (2017), recently reaffirmed this principle by reversing the 5th Circuit’s denial of a COA after the denial of an ineffective assistance of counsel claim in the district court. SCOTUS emphasized that the initial determination for whether a COA should be granted is simply “whether a claim is reasonably debatable, and if so, an appeal is the normal course.” The circuit court should not deny a COA by analyzing the issue on its merits (doing so exceeds the scope of the COA analysis). So just because the district court does not think the chicken has a good reason to cross the road, the circuit court panel just might!
Law partners Kent A. Russell and Tara K. Hoveland specialize in habeas corpus. Kent has practiced criminal law for over 45 years, has consistently received Martindale-Hubbell’s highest rating for excellence and legal ethics, and is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus, parole, and other post-conviction remedies. Tara, who has 25-plus years of experience and is a certified specialist in appellate law, is a contributing editor for the Handbook and is admitted in both CA and AZ. To buy the Handbook, use the optional order form on the website – russellhabeas.com – or contact the office by mail (3169 Washington Street, San Francisco, CA 94115) or phone (415-563-8640).
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